Cowles, Adm'r v. . Hayes and Another , 69 N.C. 406 ( 1873 )

The plaintiff on the 27th day of January, 1873, gave the the defendants notice that he should move at the next term to set aside a judgment theretofore rendered against him, and re-instate the suit on the docket.

The facts as found by his Honor are: The plaintiff, as administrator of one James Howard, caused a summons to be issued and returned before a Justice of the Peace on the 12th day of February, 1870, against the defendants, to recover $156.65, alleged to be due by a note given by defendants at a sale of the intestate's property in the Spring of 1865, and before the close of the war. The plaintiff contended that the note was not liable to scale, but on the return day of the writ, the 12th of February, 1870, the Justice in the absence of the plaintiff, gave judgment for him against the defendants according to the scale, for $4.06 and for costs. From this judgment the plaintiff appealed, and the Justice sent up the papers to the Judge (without evidence), under section 539, C. C. P., and on the 20th day of August, 1870, the Judge at Chambers, (plaintiff being absent,) affirmed the judgment of the Justice, and from which judgment of affirmation the plaintiff did not appeal; but on the 20th of September, 1870, the plaintiff filed his petition for a recordari, alleging the facts as stated, and alleging that he arrived at the place of trial before the Justice, before 11 o'clock on the day of trial, (which his Honor found to be true,) with witnesses to prove the value of the property for which the note was given, but that the Justice had already given judgment according to the scale, and refused to open the case or grant a new trial, and that the case had never been heard upon its merits. His Honor thereupon ordered the writ of recordari to issue, which issued 17th September, 1870, and at Spring Term, 1872, on motion, ordered the case to be put upon the civil issue docket for trial. The defendant appealed to the Supreme Court, and at Fall Term, 1872, the certificate of that Court in said case being filed in the Superior Court of Iredell county, the recordari was dismissed.

The plaintiff having previously given the defendants notice at Spring Term, 1873, (having made the same motion at Fall Term, 1872, which was referred for want of previous notice to defendants,) moved to vacate the judgment rendered by his Honor at Chambers, on the 20th of August, 1870, as being irregular and contrary to the course of the Court, and to cause the said appeal from the Justice to be placed on the civil issue docket of said Court for trial. His Honor vacated and set aside the judgment, and ordered the cause to be placed on the civil issue docket for trial at the next term.

From this judgment, defendants appealed. It is clear from what was said in this case in 67 N.C. 128, that the Judge erred in undertaking to decide the appeal from the Justice on the papers merely, and out of term time. It was held also that the plaintiff was mistaken in his remedy when he applied for a recordari to the Justice, because having appealed, the case was no longer before the Justice, but in the Superior Court. His only remedy possible was by applying to the Judge to vacate the judgment, which he made at Chambers. That is the course which he is now taking. The motion is not made under sec. 133, C. C. P., the plaintiff does not ground his claim to relief on his own mistake, inadvertence, surprise, c., but he puts it on the ground that the judgment of which he complains was irregular, and against the course and practice of the Court. An irregular judgment may be set aside at any time, and a party injured is not confined to a year after he has notice of it. Keaton v.Banks, 10 Ired. 381. By which is meant within any reasonable time, having regard to the rights of third persons as well as to those of the parties. The judgment was irregular, because the Judge undertook to decide the case himself, when, as the papers showed, the plaintiff was entitled to a trial upon the facts by a jury. We think the application to set it aside was made in a reasonable time.

The judgment below is affirmed and the case remanded to be proceeded in,c.

Let this opinion be certified.

PER CURIAM. Judgment affirmed.